Kelsey v. County of Schoharie, No. 07-0893 (2d Cir. 2009)
Annotate this Case
Download PDF
07-0893-cv Kelsey v. County of Schoharie 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 4 5 August Term 2008 6 7 8 9 Docket No. 07-0893-cv (Argued: October 3, 2008 JOHN KELSEY and TIMOTHY WRIGHT, both individually and on behalf of a class of others similarly situated, 10 11 12 13 14 15 16 Decided: May 22, 2009) Plaintiffs-Appellees, v. THE COUNTY OF SCHOHARIE, JOHN S. BATES JR., both individually and his official capacity as Sheriff of the County of Schoharie, and JIM HAZZARD, both individually and in his capacity as Administrator of the Schoharie County Jail, 17 Defendants-Appellants. 18 19 Before: Judges. 20 21 22 23 24 25 26 27 28 29 Appeal by defendants-appellants Bates and Hazzard, respectively the Sheriff of Schoharie County, New York, and the Administrator of the Schoharie County Jail, from a Decision and Order of the United States District Court for the Northern District of New York (Kahn, J.) denying their motion for summary judgment in an action for injunction and damages challenging a clothing exchange procedure for newly admitted jail inmates as a strip search violative of the Fourth Amendment when executed without reasonable suspicion, the appellants having asserted, inter alia, the defense of qualified immunity. 30 31 Decision and Order reversed and remanded with instructions to dismiss the action. 32 JACOBS, Chief Judge, and MINER and SOTOMAYOR, Circuit Judge Sotomayor dissents in a separate opinion. 1 1 2 3 4 Bruce Menken, Jason Rozger, Beranbaum Menken Ben-Asher & Bierman, LLP, New York, New York, for Plaintiffs-Appellees. 5 6 7 8 E. Robert Keach III, Law Offices of Elmer Robert Keach III, P.C., Amsterdam, New York, for Plaintiffs-Appellees. 9 10 11 Gregg Johnson, Girvin & Ferlazzo, P.C., Albany, New York, for Defendants-Appellants. 2 1 MINER, Circuit Judge: INTRODUCTION 2 3 Defendants-appellants John S. Bates Jr., Sheriff of 4 Schoharie County, New York, and Lt. Jim Hazzard, Administrator of 5 the Schoharie County Jail (together, the defendants ) appeal 6 from a Decision and Order entered in the United States District 7 Court for the Northern District of New York (Kahn, J.) denying 8 their motion for summary judgment in an action brought against 9 them by plaintiffs-appellees John Kelsey and Timothy Wright 10 (together, the plaintiffs ). Kelsey v. County of Schoharie, No. 11 1:04-CV-299, 2007 WL 603406 (N.D.N.Y. Feb. 21, 2007). 12 of Schoharie is also named as a defendant in the action and 13 joined in the motion. 14 damages, claiming that the clothing exchange procedure for newly 15 admitted inmates at the Schoharie County Jail constitutes a strip 16 search violative of the Fourth Amendment when executed without 17 reasonable suspicion. 18 individual capacities, base their motion for summary judgment, 19 inter alia, on the defense of qualified immunity. 20 District Court, identifying a possible constitutional violation, 21 found material facts in dispute and therefore rejected the 22 defense of qualified immunity, with leave to reassert the defense 23 at the proper time. 24 reasons that follow, we reverse the Decision and Order of the 25 District Court and remand with instructions to dismiss the 26 action. The County The plaintiffs seek an injunction and The defendants, sued in their official and The learned Kelsey, 2007 WL 603406, at *8. 3 For the BACKGROUND 1 2 I. The Clothing Exchange According To Defendants 3 The Schoharie County Jail is operated by the Schoharie 4 County Sheriff s Department under the direction of Sheriff Bates. 5 Day-to-day responsibility for the facility is vested in Lt. 6 Hazzard as jail administrator. 7 established and implemented procedures for the admission of male 8 inmates to the facility and state that they have familiarized and 9 trained all subordinate personnel at the facility in these Bates and Hazzard have 10 procedures. Included in the intake procedure is a clothing 11 exchange, whereby newly admitted inmates are issued distinctive 12 facility clothing in exchange for their street clothes. 13 clothing exchange requirement is applied only to those male 14 inmates who are not expected to make bail and therefore are to be 15 confined in a housing unit at the jail. 16 Bates, This According to Sheriff 17 18 19 20 21 22 23 24 25 26 27 [t]he purposes of the clothing issue include, ensuring that each inmate has clean clothing free of infestation and to make sure that inmates are clearly identifiable and can be readily distinguished from visitors, members of the public and staff. For some inmates, the facility-issued clothing is better than the clothing and personal care items they have outside the facility and thus may positively impact their state of mind while being housed at the [jail]. The issuance of clothing is commonly referred to as the clothing exchange process. 28 Before the clothing exchange, a new inmate undergoes a 29 booking procedure. He is first transported from a sally port to 30 a holding area containing two holding cells next to a control 31 room and booking room. In the holding area, the inmate is 4 1 required to remove his coat (if any) and empty his pockets. 2 Thereafter, he is subjected to a pat frisk and sometimes to a 3 search by a hand-held metal detector, all while the inmate is 4 fully clothed. 5 is authorized during the intake period. 6 placed in a holding cell within the holding area until the 7 admitting corrections officer is ready to proceed with the 8 booking process. 9 According to the Sheriff, no other type of search The inmate then is The inmate is next required to sit beside a window in the 10 holding area. 11 window, through which the inmate is interviewed by the 12 corrections officer. 13 questions into a computer. 14 as pedigree, medical information, scars and tattoos. 15 corrections officer in charge of the booking procedure returns to 16 the holding area, where he photographs and fingerprints the 17 inmate. 18 booking process. 19 The booking room is on the other side of the The officer enters the answers to his The questions pertain to such matters Next, the The inmate remains in his street clothes throughout the It is only after the booking process is completed that the 20 clothing exchange takes place for those inmates who are to be 21 confined in one of the housing units. 22 written policy for the clothing exchange itself, the defendants 23 insist that they have established a protocol for the clothing 24 exchange and have instructed all jail personnel in the protocol 25 as follows: 26 mesh property bag into which the inmate is to place his clothes. Although there is no A corrections officer produces in the holding area a 5 1 The officer instructs the inmate to stand on one side of a 42" x 2 48" masonry half-wall with the officer on the other side. 3 officer then lays out on the half-wall the jail uniform, a 48" 4 long white towel, soap and other personal items. 5 then instructed to disrobe and place his street clothes into the 6 mesh bag, which is held open by the officer on the other side of 7 the half-wall. 8 disrobes preparatory to taking a required shower and dressing in 9 the jail uniform. The The inmate is The inmate may use the towel for privacy as he 10 While the inmate is showering, the officer takes the 11 inmate s street clothes to a property room across the hallway 12 from the holding area. 13 for contraband, tags it, and sends it to the laundry room for 14 washing. 15 newly clothed inmate to the appropriate housing unit. 16 protocol does not call for the officer to conduct a personal 17 search or body inspection or to observe the inmate taking a 18 shower or getting dressed. 19 specifically addressed to the clothing exchange procedure, there 20 is a written policy entitled Inmate Processing. 21 policy is a provision for medical screening which provides: A 22 visual analysis of the inmate will be conducted throughout the 23 admission process. 24 There, the officer inspects the clothing When he returns to the holding area, he escorts the The Although there is no written policy Within that A written policy for strip searches and body cavity searches 25 has been established at the jail under the title Control of and 26 Search for Contraband. It provides that [a] strip/strip frisk 6 1 search shall not be routinely conducted. Such a search is 2 allowed only [w]here an officer has made a determination that 3 there is reasonable suspicion to believe that the inmate should 4 be searched or [w]here an officer has reasonable suspicion to 5 believe an inmate is hiding contraband on his person and/or the 6 inmate is in possession of contraband. 7 [w]hen inmates cooperate in the conduct of a strip/strip frisk 8 search, the inmate s body will not be touched. 9 searches in the jail [m]ay be authorized only in circumstances 10 where there are compelling reasons to believe that the inmate(s) 11 to be searched have secreted in a rectal/vaginal cavity 12 contraband, the nature of which constitutes a clear threat to the 13 safety and security of the facility and/or a threat to the safety 14 and well being of any person. 15 a single occasion when a [b]ody cavity search was conducted on an 16 inmate during [his] tenure as Sheriff. The policy provides that Body cavity Sheriff Bates do[es] not recall 17 Sheriff Bates has put forth the proposition that the 18 clothing exchange procedure is not intended as a personal search 19 of the inmate but rather a brief administrative process that 20 precedes newly-admitted inmates[ ] transport to a housing unit. 21 He has represented, [u]pon information and belief, that 22 inmates are never instructed to squat, bend, turn, open their 23 mouth, manipulate their body, or in any other manner expose 24 themselves for a personal search or inspection during the 25 clothing exchange. 26 corrections officers at the jail have been trained to perform the Jail Administrator Hazzard avers that 7 1 prescribed clothing exchange procedure and that [t]he clothing 2 exchange is simply intended to get inmates into the jail uniform 3 and secure their street clothing on their way to housing. 4 However, he is aware of three occasions when the prescribed 5 procedure was not followed: On one occasion, the corrections 6 officer left the holding area and left the inmate alone to change 7 out of his street clothes and into his prison clothes and to 8 shower. 9 caused the clothing exchange to take place in the holding cell On the other two occasions, the corrections officer 10 instead of allowing the inmate the benefit of the privacy 11 afforded by the masonry half-wall. 12 II. 13 The Clothing Exchange According To Plaintiffs Plaintiff Kelsey arrived at the Schoharie County Jail on 14 October 16, 2002, having been transported there from the Albany 15 County Jail, where he worked as a corrections officer. 16 been arrested for a civil violation of the Family Court Act in 17 connection with a child support matter. 18 procedure, including photographing and fingerprinting, before the 19 required clothing exchange. 20 a corrections officer laid out the jail uniform on a bench in 21 front of the half-wall. 22 clothes in the open booking area, as directed, in order to put on 23 the jail uniform. 24 his underwear, and the officer replied: Yes. 25 officer stood directly in front of Kelsey during the clothing 26 exchange, and Kelsey placed his street clothes into a clear He had He underwent the booking He testified at his deposition that He proceeded to take off his street Kelsey asked the officer if he had to remove 8 Everything. The 1 garbage bag at the request of the officer. 2 In his deposition, Kelsey stated that he asked the officer 3 during the clothing exchange: Do I have to do this here? and 4 that the officer answered: Yes, you do. 5 the officer s eyes were looking up and down my body, so I assume 6 he saw my genitals. 7 embarrassing and [h]umiliating. 8 the clothing exchange he was not prevented from turning around, 9 from going behind the half-wall or from using the towel or the Kelsey testified that Kelsey found the entire process Kelsey testified that during 10 bag to obscure the officer s view of his body. 11 that he was not required to lift his arms, to open his mouth, to 12 expose his buttocks or to manipulate any part of his body. 13 did not indicate that he was touched by the officer in any way. 14 He also stated He The Cobleskill Police Department brought plaintiff Wright to 15 the Schoharie County Jail at about 3:30 a.m. on September 5, 16 2003, after Wright s arrest for driving while intoxicated. 17 his deposition, Wright testified that, following his interview at 18 the jail, he was placed in a holding cell with the cell door 19 open. 20 and a mesh bag for his street clothes. 21 the cell and removed his street clothing, which he placed in the 22 bag. 23 towel with him. 24 got dressed in the jail uniform and was escorted to a housing 25 unit. 26 of him as he removed his street clothes (a process that took one In An officer then brought him a jail uniform, a white towel, Wright sat on a bench in He then proceeded to take a shower as directed, taking the He returned to the holding cell with the towel, According to Wright, a corrections officer stood in front 9 1 minute) and placed them in the mesh bag provided. When asked in 2 what direction he was facing as he undressed, Wright testified: 3 At somewhat of an angle to [the officer], but I can t recall 100 4 percent which way I was facing. 5 towards the officer. 6 in the holding cell after the shower, no one was present in the 7 holding area. 8 and emotional stress allegedly suffered, Wright described his 9 experience as rather unpleasant and stated: [I]t was, you It was like sort of facing Wright also testified that when he dressed In response to a question relating to the mental 10 know, just a rather humiliating kind of shameful kind of, just 11 being naked in front of at least one other individual and 12 possibly in the view of others. 13 Plaintiff Wright s description of the deviations from the 14 clothing exchange protocol is consistent with the deposition 15 testimony of Joseph Kenyon, a corrections officer employed at the 16 Schoharie County Jail. 17 required to stand in front of him and face him during the entire 18 clothing exchange. 19 clothing, the disrobing takes place in the holding cell where 20 the inmate is at, and there is no option to disrobe in private. 21 III. 22 District Court According to Officer Kenyon, inmates are He watches the inmates as they remove their The Motion for Summary Judgment and the Decision of the 23 Relying upon affidavits as well as depositions and other 24 materials obtained during discovery, the defendants moved for 25 summary judgment in the District Court. 26 clothing exchange procedure did not entail a strip search, that 10 They contended that the 1 inmates were allowed to preserve their privacy in various ways 2 during the exchange, and that established Jail policy permits a 3 strip search only on reasonable suspicion. 4 raised the defense of qualified immunity in the motion. 5 Plaintiffs responded that the clothing exchange process requires 6 a visual examination of each inmate during disrobing and that 7 such examination constitutes an unreasonable search for Fourth 8 Amendment purposes when conducted without reasonable suspicion. 9 10 11 12 13 14 15 16 17 18 19 20 Defendants also In a written opinion denying the motion for summary judgment,1 the District Court stated as follows: Defendants have not met their burden to prove that there is no issue of material fact as to whether [the jail s] policies and practices require COs to observe inmates as they remove their street clothes. However, a question remains: if a CO w[ere] required to observe an inmate undress, would this procedure constitute an unreasonable search under the Fourth Amendment to the United States Constitution? Kelsey, 2007 WL 603406, at *5. Consistently characterizing the clothing exchange as the 21 Exchange/Strip Search Process throughout its opinion, the 22 District Court examined the record and concluded that the 23 observation of a newly admitted inmate in the process of 24 disrobing is a search for contraband. 25 Court also noted the defendants contention that the presence of 26 a corrections officer serves as a deterrent to the transfer or 27 destruction of contraband. 1 2 3 Id. at *6. 1 Id. at *6. The District The District Court In the same opinion, the District Court granted plaintiff s motion for class certification. Kelsey, 2007 WL 603406, at *14. 11 1 concluded: If this admission is accurate, it can mean only one 2 thing: that the exchange/strip search process is meant to serve 3 as a search for contraband even when there is no reasonable 4 suspicion to do so. 5 noted, a strip search without reasonable suspicion is prohibited 6 by our precedent. 7 on the constitutionality of the search it had identified: 8 [T]his Court cannot grant summary judgment to the Defendants 9 while there is credible conflicting evidence in the record Id. at *7. As the District Court correctly However, the court made no final pronouncement 10 regarding the nature of the CO s observation of inmates as they 11 disrobe. 12 challenged searches were unreasonable. 13 however, that the defendants were amenable to suit individually 14 [a]s a consequence of their involvement in the maintenance of 15 [the jail s] policies and practices. 16 briefly addressed the qualified immunity defense as follows: 17 18 19 20 21 22 23 24 25 Id. The District Court thus did not find that the Id. Finally, the court There remains a dispute regarding material facts related to the constitutionality of the exchange/strip search process. As a result, it would be premature to determine whether Defendants Bates and Hazzard are responsible for violating clearly established constitutional law or are immune from suit under the qualified immunity doctrine. Defendants Bates and Hazzard may renew their defense at the proper time. Id. at *8. ANALYSIS 26 27 The court did find, I. Of Appealability and Qualified Immunity 28 It is the District Court s denial of qualified immunity that 29 permits the defendants to bring this appeal to us as an exception 30 to the rule of finality. See Mitchell v. Forsyth, 472 U.S. 511, 12 1 530 (1985) ( [A] district court s denial of a claim of qualified 2 immunity, to the extent that it turns on an issue of law, is an 3 appealable final decision within the meaning of 28 U.S.C. 4 § 1291 notwithstanding the absence of a final judgment. ) 5 Interlocutory appeal in this sort of case is not permitted if 6 the district court s denial of summary judgment for qualified 7 immunity rests on a finding that there were material facts in 8 dispute. 9 (2d Cir. 1996). Genas v. N.Y. Dep t of Corr. Servs., 75 F.3d 825, 830 The Supreme Court teaches that a district 10 court s summary judgment order that, though entered in a 11 qualified immunity case, determines only a question of 12 evidence sufficiency, i.e., which facts a party may, or may 13 not, be able to prove at trial . . . is not appealable. 14 v. Jones, 515 U.S. 304, 313 (1995). 15 Johnson Despite the bar to appealability that factual issues may 16 provide in the qualified immunity context, we have observed that 17 18 19 20 21 22 23 as long as the defendant can support an immunity defense on stipulated facts, facts accepted for purposes of the appeal, or the plaintiff s version of the facts that the district court deemed available for jury resolution, an interlocutory appeal is available to assert that an immunity defense is established as a matter of law. 24 Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). We accept the 25 plaintiffs version of the facts in making our determination 26 herein, as will be seen. 27 the district court s denial of defendants motion for summary 28 judgment to the extent that the motion is grounded in qualified 29 immunity, and our review is de novo. Accordingly, we take jurisdiction over 13 See Jones v. Parmley, 465 1 F.3d 46, 55 (2d Cir. 2006). 2 Under the doctrine of qualified immunity, government 3 officials performing discretionary functions generally are 4 shielded from liability for civil damages insofar as their 5 conduct does not violate clearly established statutory or 6 constitutional rights of which a reasonable person would have 7 known. 8 assessing an officer s eligibility for the shield, the 9 appropriate question is the objective inquiry whether a Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In 10 reasonable officer could have believed that [his actions were] 11 lawful, in light of clearly established law and the information 12 the officer[] possessed. 13 (1999). 14 government officer if it was objectively reasonable for him to 15 believe that his actions were lawful at the time of the 16 challenged act. 17 1995) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)); 18 see also Martinez v. Simonetti, 202 F.3d 625, 633 34 (2d Cir. 19 2000). 20 II. 21 Wilson v. Layne, 526 U.S. 603, 615 Qualified immunity is also said to protect the Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. Of the Threshold Inquiry Until the issuance of the Supreme Court s opinion in Pearson 22 v. Callahan, 129 S. Ct. 808 (2009), the following threshold 23 inquiry was mandatory: 24 25 26 27 28 29 A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the inquiry, do the facts alleged show the officers conduct violated a constitutional right. This must be the initial inquiry. 14 1 . . . . 2 3 4 5 If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. 6 Saucier v. Katz, 533 U.S. 194, 201 (2001). While it is now true 7 that the Saucier protocol should not be regarded as mandatory in 8 all cases, [the Supreme Court] continue[s] to recognize that it 9 is often beneficial. Pearson, 129 S. Ct. at 818. Accordingly, 10 we are no longer required to make a threshold inquiry as to the 11 violation of a constitutional right in a qualified immunity 12 context, but we are free to do so. 13 said to be appropriate in those cases where discussion of why 14 the relevant facts do not violate clearly established law may 15 make it apparent that in fact the relevant facts do not make out 16 a constitutional violation at all. 17 case. 18 Court was certainly correct in noting that the two-step procedure 19 promotes the development of constitutional precedent and is 20 especially valuable with respect to questions that do not 21 frequently arise in cases in which a qualified immunity defense 22 is unavailable. 23 Id. at 821. Id. at 818. The inquiry is This is such a The Supreme Court s current teaching is that the Saucier Id. The development of constitutional precedent is especially 24 important here, where (1) this Court has not spoken on the issue 25 of the constitutionality of clothing exchange procedures in jails 26 although the issue has been presented in district courts in this 27 circuit, see, e.g., Marriott v. County of Montgomery, 227 F.R.D. 15 1 159, 169 70 (N.D.N.Y. 2005) (holding that a jail facility s 2 change-out procedure was a strip search and in violation of 3 the Fourth Amendment to the Constitution); see also Williams v. 4 County of Niagara, No. 06-CV-291A, 2008 WL 4501918, at *2 5 (W.D.N.Y. Sept. 29, 2008) (involving a class action certification 6 question where the defendants argued, inter alia, that a 7 clothing change-out procedure in a jail does not constitute 8 a strip search and is constitutional ); and (2) the 9 constitutionality of clothing exchange procedures in jails may 10 never be developed if this Court were to dispose of all 11 challenges relating to the procedures simply because the 12 procedure is not clearly established as a strip search 13 violative of the Fourth Amendment. 14 It is also said that addressing the constitutional issue 15 first may not only avoid the possibility of drawn-out litigation 16 and the imposition of unwarranted liability, but may also serve 17 to clarify official conduct standards. 18 Servs., Inc. v. Town of E. Hampton, 192 F.3d 329, 334 (2d Cir. 19 1999). 20 undertaking the constitutional inquiry first in this case. 21 the facts, viewed in light most favorable to the plaintiff, do 22 not demonstrate that an officer s conduct violated a 23 constitutional right, the court need not further pursue the 24 qualified immunity inquiry, and the officer is entitled to 25 summary judgment. 26 2007). See Sound Aircraft We think that all these purposes are served by When Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 16 1 2 III. Of Strip Searches and the Fourth Amendment In undertaking our threshold constitutional inquiry, we 3 first take note of our long-standing precedent covering strip 4 searches of those arrested for misdemeanors: 5 6 7 8 9 10 The Fourth Amendment requires an individualized reasonable suspicion that [a misdemeanor] arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee and/or the circumstances of the arrest before [he] may be lawfully subjected to a strip search. 11 Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (citing Weber 12 v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)) (first alteration in 13 original); see also Walsh v. Franco, 849 F.2d 66, 68 69 (2d Cir. 14 1988). 15 the language of our precedent by providing that a strip search 16 may be conducted only [w]here an officer has made a 17 determination that there is reasonable suspicion to believe that 18 the inmate should be searched or [w]here an officer has 19 reasonable suspicion to believe an inmate is hiding contraband on 20 his person and/or the inmate is in possession of contraband. 21 There is to be no touching of the body unless the inmate fails to 22 cooperate in the search. 23 for body cavity searches: [c]ompelling reasons to believe that . 24 . . contraband . . . constitut[ing] a clear threat to the safety 25 and security of the facility is concealed in a body cavity. 26 version of events at the Schoharie County Jail described by the 27 plaintiffs do not describe a body cavity search, and Sheriff 28 Bates has indicated that no such searches have been conducted at 29 the jail during his tenure as Sheriff. The written policy of the Schoharie County Jail tracks A much higher standard is required 17 The 1 Various terms are used to describe the inspection of a naked 2 body, and the terms are distinguished by the degrees of intrusion 3 involved in the search for contraband. 4 is used generally to describe any inspection of the naked body. 5 See N.G. v. Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2007). 6 An individual being strip searched may be required to move his 7 body in various ways to permit a more complete inspection. 8 A visual body-cavity search is a strip search that entails the 9 specific examination of the genitals and anus, without any bodily Id. 10 contact by the inspector. 11 search is a strip search that involves a naked body examination, 12 including a viewing of the genitals and anus, by touching or 13 probing with an instrument. 14 IV. 15 Id. The term strip search Finally, a manual body-cavity Id. Of the Clothing Exchange at the Schoharie County Jail For purposes of this appeal, we accept the plaintiffs 16 description of the clothing exchange procedure, although the 17 procedure they describe appears to deviate in certain respects 18 from the protocol purportedly established by the defendants.2 19 See Salim, 93 F.3d at 90. We therefore proceed, taking the facts 2 Although the dissent, in several places, accuses us of having accepted the defendants version of the facts, that is not so. Most of the half dozen plaintiffs facts that the dissent claims we ignore are expressly considered in this opinion, as the reader can confirm. Moreover, the third fact identified by the dissent that Kelsey had to walk naked to obtain his prison uniform is a distortion of the record. Kelsey testified that he reached over and grabbed the . . . uniform, not that he walk[ed] while naked to obtain the uniform. It is undisputed that the plaintiffs were not entirely deprived of the means for protecting their modesty. 18 1 in the light most favorable to plaintiffs, to examine the 2 constitutional question presented. 3 818. 4 See Pearson, 129 S. Ct. at We first observe that the plaintiffs make no claim that they 5 were subjected to visual or manual body cavity searches. 6 Plaintiff Kelsey testified that a corrections officer stood in 7 front of him during the brief period when he removed his street 8 clothes and put on the jail uniform. 9 assume[d] that the officer saw [his] genitals during that Kelsey testified that he 10 time. 11 to assume any particular position. 12 protecting his privacy by turning away from the officer as he 13 undressed, by concealing the lower half of his body behind the 14 half-wall in front of which he was standing, or by using the 15 towel that was available to him during the clothing exchange. 16 any event, briefly seeing a man s genitals during a clothing 17 exchange does not amount to a strip search.3 18 19 Kelsey was not asked to manipulate his body in any way or Nor was he prevented from In Plaintiff Wright s characterization of the clothing exchange as a search is even more attenuated. 3 According to Wright, the The dissent argues that any statement by the majority about the constitutionality of forcing arrestees to strip is dicta. This ignores the entire basis of this lawsuit, which attacks a policy that (on plaintiffs version of the facts) compels arrestees to remove all of their clothing in the presence of a watchful officer in preparation for showering and changing into prison attire. We assume, as we must, that inmates are required to remove their clothing in the presence of an officer. We nonetheless hold that the clothing exchange process, as described by plaintiffs, was not an unreasonable search under the Fourth Amendment. 19 1 clothing exchange took place in a holding cell, where he disrobed 2 in one minute as a corrections officer stood in front of him. 3 Wright testified that he undressed [a]t somewhat of an angle to 4 the officer but could not recall 100 percent which way [he] was 5 facing. 6 facing toward the officer. 7 him as he disrobed, and he took the towel with him as he went to 8 take a shower before returning to the holding cell with the 9 towel. As best he could describe it, [it] was like sort of Apparently, a towel was available to Back in the cell, he dressed in the jail uniform. 10 According to Wright s version of events, no officer was present 11 when he put on the jail uniform. 12 was not required to move or display his body in any particular 13 way. Also, as with Kelsey, Wright 14 Corrections Officer Kenyon, who supported the testimony of 15 plaintiff Wright, at least to the extent of indicating that the 16 clothing exchange took place in a holding cell (rather than 17 behind the half-wall), declared that the purpose of the clothing 18 exchange process, as far as I know, is simply to get inmates into 19 the jail uniform and secure their street clothing. 4 20 Nevertheless, a necessary function of any corrections officer is 21 to observe inmates at all times, whether the inmate is eating, 22 sleeping, showering, undertaking recreational activity or 4 Contrary to the dissent s reading of our opinion, this does not suggest that the subjective intent of the corrections officers is to be considered. It supports only the fact that the corrections officers were charged with effectuating a clothing exchange. 20 1 engaging in any other activity within the confines of any jail. 2 We conclude that the incidental observation of the body of 3 an arrestee during a required clothing exchange, in the manner 4 described by plaintiffs, is not an unreasonable search under the 5 Fourth Amendment. 6 exchange observed by corrections officers under the circumstances 7 described by plaintiffs is related to maintaining institutional 8 security and preserving internal order and discipline[,] 9 essential goals that may require limitation or retraction of the Moreover, it seems to us that a clothing 10 retained constitutional rights of both convicted prisoners and 11 pretrial detainees. 12 The objectives served by a clothing exchange, according to 13 Sheriff Bates, include assurance that each inmate has clothing 14 that is clean and free of infestation; that inmates are clearly 15 identifiable and distinguishable from visitors, staff and members 16 of the public; and that a positive state of mind be instilled in 17 each inmate. 18 Bell v. Wolfish, 441 U.S. 520, 546 (1979). In assessing the need to promote the foregoing interests, we 19 recognize that we owe substantial deference to the professional 20 judgment of prison administrators such as Sheriff Bates. 21 Overton v. Bazzetta, 539 U.S. 126, 132 (2003). 22 exchange is a common practice in jails and prisons as is the need 23 for corrections officers to be vigilant at all times. 24 Marriott, 227 F.R.D. at 169 70; Williams, 2008 WL 4501918, at *2; 25 see also Barber v. Overton, 496 F.3d 449, 463 (6th Cir. 2007) 26 (Cook, J., concurring) ( Corrections officers must be ever 21 See A clothing See, e.g., 1 vigilant of constant, and often innovative, threats to their 2 safety . . . . 3 policies of the penal institution support clothing exchanges at 4 jail intakes as well as the watchful gaze of corrections officers 5 over inmates, whether they are clothed or not.5 6 at 546. 7 (citation omitted)). Legitimate goals and Bell, 441 U.S. The dissent points out that inmates are afforded privacy 8 when they shower and change into prison attire during the 9 clothing exchange process. From this the dissent infers that 10 defendants have rejected the idea that the presence of officers 11 when inmates remove their street clothes furthers security, 12 order, and discipline in the jail. 13 best; and in any event, it is not for us to decide when officers 14 should be permitted to observe inmates as they go about 15 activities of daily life in jail, or specify (under the 16 Constitution) times when inmates may not be watched. 17 dissent observes, the Schoharie County Jail is a controlled 18 environment, in which inmates have a limited expectation of 19 privacy and freedom of movement. 20 set a floor of constitutionality permissible conduct, we are ill- 21 equipped to define the contours of life in jail. 22 This inference is strained at As the While we have an obligation to The District Court framed the issue thus: [I]f a CO w[ere] 5 The dissent contends that our consideration of penological interests is inconsistent with our holding that the clothing exchange procedure did not constitute a Fourth Amendment search. However, that a court must examine penological interests if a constitutional right is implicated does not mean that a court is precluded from considering them in other circumstances. 22 1 required to observe an inmate undress, would this procedure 2 constitute an unreasonable search under the Fourth Amendment to 3 the United States Constitution? 4 Our answer to this question is that such a procedure is not per 5 se an unreasonable search violative of the Fourth Amendment. 6 giving this answer, we do not depart from, or erode in anyway, 7 our clearly established precedent that persons charged with a 8 misdemeanor and remanded to a local correctional facility . . . 9 have a right to be free of a strip search absent reasonable Kelsey, 2007 WL 603406, at *5. In 10 suspicion that they are carrying contraband or weapons . . . . 11 Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001); see also N.G. 12 v. Connecticut, 382 F.3d 225 (2d Cir. 2004) (stating that this 13 Court has ruled in several decisions that strip searches may not 14 be performed upon adults confined after arrest for misdemeanors, 15 in the absence of reasonable suspicion concerning possession of 16 contraband (citing Shain, 272 F.3d at 62 66; Wachtler v. County 17 of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994); Walsh v. Franco, 849 18 F.2d 66, 68 69 (2d Cir. 1988); Weber, 804 F.2d at 802)). 19 precedents do not control the allegations in this case. 20 Our We hold here only that a process for the exchange of 21 personal clothing for prison clothing under the observation of a 22 corrections officer in the manner described by plaintiffs does 23 not implicate the type of privacy protected by the Fourth 24 Amendment nor does it fall within the prohibitions established by 25 our precedents relating to strip searches. 26 required to display or manipulate their body parts in any way. 23 Plaintiffs were not 1 Moreover, Plaintiffs did not deny that methods were available to 2 them to protect viewing of their private parts in the event they 3 desired to make use of such methods. 4 V. 5 Conclusion Because the plaintiffs have been unable to identify any 6 constitutional violation on the parts of the individual 7 defendants, the Decision and Order of the District Court is 8 reversed, and the case is remanded with instructions to dismiss 9 the action as against the individual defendants. Because the 10 plaintiffs lack any underlying claim of a deprivation of a 11 constitutional right, the claim of municipal liability on the 12 part of defendant County of Schoharie is to be dismissed as well. 13 See Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). 24 1 I dissent because the majority has exercised jurisdiction where it has none and assumed 2 the wrong party s version of the facts. It has also offered dicta that contradicts this Circuit s 3 precedent and disregards the experienced judgment of jail administrators. Under a correct 4 analysis of this case, we would be presented with the following question: During the relevant 5 time period, did our clearly established precedent interpreting the Fourth Amendment permit 6 arrestees for misdemeanors to be forced to expose their private parts to corrections officers 7 ( COs ) and inmates without reasonable suspicion? The answer is no. Accordingly, the 8 judgment of the district court should be affirmed. 9 Because we are reviewing, on interlocutory appeal, a denial of summary judgment on the 10 ground of qualified immunity, our jurisdiction is limited in two key ways. First, we cannot assert 11 jurisdiction over a question of evidence sufficiency. Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 12 1996) ( What we may not do . . . is entertain an interlocutory appeal in which a defendant 13 contends that the district court committed an error of law in ruling that the plaintiff s evidence 14 was sufficient to create a jury issue on the facts relevant to the defendant s immunity defense. ). 15 Second, we may only assert jurisdiction over this interlocutory appeal if we use the undisputed 16 facts or plaintiff s version of the facts. Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002) 17 (internal quotation marks omitted). The majority violates both principles: it dismisses the district 18 court s finding regarding the sufficiency of plaintiffs evidence, and it adopts defendants version 19 of the facts. 20 The district court found that there existed issue[s] of material fact as to whether [the 21 jail] s policies and practices require COs to observe inmates as they remove their street clothes 22 in what may have amounted to a strip search process. Kelsey v. County of Schoharie, 23 No. 04-cv-299, 2007 WL 603406, at *5 (N.D.N.Y. Feb. 21, 2007). Rejecting the district court s 24 finding, the majority re-evaluates the record and concludes that [p]laintiffs were not required to 25 display . . . their body parts in any way and that methods were available to the[ plaintiffs] to 26 protect viewing of their private parts in the event they desired to make use of such methods. 25 1 Maj. Op. at 24. The majority never explains how it has the authority to re-weigh the sufficiency 2 of the evidence and conclude that there is no dispute regarding a material fact. Our precedent is 3 clear that [i]n an interlocutory appeal of a qualified immunity claim, where the parties dispute 4 material facts, the issue of whether there is sufficient evidence to support plaintiff s version of 5 the material facts is within the province of the district court. Holeman v. City of New London, 6 425 F.3d 184, 192 (2d Cir. 2005); see also Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir. 7 2000) ( [I]mmediate appeal is not permitted if the district court s denial of summary judgment 8 for qualified immunity rests on a finding that there were material facts in dispute . . . . (internal 9 quotation marks omitted)). 10 The majority avoids acknowledging its usurpation of the district court s jurisdiction by 11 purporting to conduct an analysis based on plaintiffs version of the facts. Maj. Op. at 19 21. 12 Yet plaintiffs Kelsey and Wright have alleged that, after being arrested, respectively, for violating 13 a child support order and driving while intoxicated, they were forced to strip naked and be 14 inspected by corrections officers. (See Compl. ¶¶ 32-36, 40-43; Dep. of John Kelsey 75:22 76:2 15 ( I was humiliated. . . . I had another officer strip me down and, you know, staring at me when I 16 was naked. ); Dep. of Timothy E. Wright 134:10 13 ( [I]t was, you know, just a rather 17 humiliating kind of shameful kind of, just being naked in front of at least one other individual 18 and possibly in the view of others. ).) Contrary to these allegations, the majority implausibly 19 concludes that Kelsey and Wright volunteered to strip naked and expose their private parts to 20 corrections officers and others, despite several opportunities to guard their privacy. See Maj. Op. 21 at 24. In so concluding, the majority is adopting defendants not plaintiffs version of the 22 facts. (See Appellants Br. at 2 ( This case specifically concerns a procedure . . . that requires 23 inmates to change out of their street clothes and into a facility-issued uniform with partial privacy 24 but in the physical presence of a corrections officer. ).) 25 26 The majority justifies its approach by excerpting portions of plaintiffs deposition testimony. For example, the majority emphasizes Kelsey s responses to questions from 26 1 defendants counsel to the effect that, during his disrobing, no one prevented him from turning 2 around, hiding behind a half-wall in the booking area, or somehow covering himself with a towel 3 or mesh bag while removing all of his clothes. Maj. Op. at 9, 19. These statements, however, 4 cannot be understood in isolation. Kelsey, according to his own testimony, did not recall having 5 a towel at his disposal when he was removing his clothing. Nonetheless, the majority assumes 6 that a towel was available to Kelsey during his disrobing. Maj. Op. at 19. 7 The majority overlooks or discounts other key details in the deposition testimony of 8 Kelsey and Wright that undermine the majority s conclusion that plaintiffs, by their own 9 admission, could have protected their privacy by turning their backs to the CO,1 wrapping 10 themselves in a towel or hiding behind a half-wall in the booking area. First, the majority 11 acknowledges but then disregards that one of the COs who may have observed Wright testified 12 that arrestees were required to stand in front of him and face him during the entire clothing 13 exchange, and that the exchange did not take place near the half-wall or provide the option to 14 disrobe in private. Maj. Op. at 10-11. Second, the majority simply ignores that Kelsey testified 15 that he was forced to disrobe in full view of a holding cell that contained an inmate, who was 16 standing and laughing at Kelsey. It is questionable whether Kelsey could have avoided the eyes 17 of the CO as well as those of the inmate. Third, the majority dismisses Kelsey s testimony that, 18 because the jail uniform into which he was supposed to change was located on a bench outside of 19 his reach, he had to walk while naked to obtain the uniform.2 Under those circumstances, it is 20 unclear how Kelsey could have maintained his privacy behind a wall. Fourth, Wright testified 21 that he was forced to strip inside of, or immediately at the gate of, a holding cell, in front of 22 which stood a CO. During his deposition, one of the COs confirmed that he conducted clothing Despite the majority s assumption, it is not clear that an individual s privacy interests would be preserved if he were forced to expose his naked backside to a CO. 1 Kelsey testified that, in order to reach the bench, I had to move. I don t know exactly how many steps. 2 27 1 exchanges in the holding cell with the arrestee. In order to change behind the half-wall, Wright 2 would have been required to walk away from the holding cell and past the CO. Fifth, although 3 the majority notes that Kelsey and Wright testified that a CO stood in front of them while they 4 were changing, the majority does not fully consider the fact that, according to both parties, the 5 CO was holding the bag into which plaintiffs had to deposit their clothes as they removed them. 6 This would have made it nearly impossible for either arrestee to turn his back to the CO and 7 successfully deposit his clothes in the bag. 8 9 Finally, the majority assumes that the obligatory stripping occurred amidst free-spirited dialogue between jail guards and arrestees, instead of (as defendants acknowledge) in a 10 controlled environment, which both Kelsey and Wright described as [h]umiliating. In the 11 one instance when Kelsey (who worked as a corrections officer at another jail) questioned the 12 CO regarding the disrobing procedure, Kelsey was informed that he had no other option.3 13 The majority compounds its errors involving jurisdiction and standard-of-review by 14 offering dicta that contradicts this Circuit s precedent. Although concluding that methods were 15 available to the[ plaintiffs] to protect any viewing of their private parts, Maj. Op. at 24, the 16 majority nonetheless suggests that the disrobing procedure would be constitutional because 17 briefly seeing a man s genitals during a clothing exchange does not amount to a strip search. 18 Maj. Op. at 20. Then the majority seems to retreat from this statement when it writes, [w]e hold 19 here only that a process for the exchange of personal clothing for prison clothing under the 20 observation of a corrections officer in the manner described by plaintiffs does not implicate the 21 type of privacy protected by the Fourth Amendment. Maj. Op. at 24. In fact, as discussed, the 22 majority has accepted defendants version of the facts and concluded that plaintiffs in this case 23 were not required to expose themselves. Accordingly, any statement by the majority about the 24 constitutionality of forcing arrestees to strip naked is dicta. Kelsey testified as follows: I had asked him [the C.O.], Do I have to [do] this here? Do I have to get changed here, and he said Yes, you do. 3 28 1 It is, however, puzzling dicta, given this Circuit s precedent on strip searches. See, e.g., 2 Shain v. Ellison, 273 F.3d 56, 66 (2d Cir. 2001) ( [P]ersons charged with a misdemeanor and 3 remanded to a local correctional facility . . . have a right to be free of a strip search absent 4 reasonable suspicion that they are carrying contraband or weapons . . . . ); Walsh v. Franco, 849 5 F.2d 66, 69 (2d Cir. 1988) ( [T]he unconstitutionality of a blanket policy calling for strip 6 searches of all misdemeanor arrestees was clearly established. ). Without explanation, the 7 majority dismisses this Circuit s precedent on strip searches as not control[ling] the allegations 8 in this case. Maj. Op. at 24. From the majority s opinion, however, one can infer two possible 9 reasons for the majority s summary statement, neither of which is valid under Fourth 10 Amendment jurisprudence. 11 First, insofar as the majority suggests that brief[] exposure of one s private parts does 12 not implicate the Fourth Amendment, Maj. Op. at 20, our precedent does not support the notion 13 that a search need be prolonged or thorough to be termed a strip search. See N.G. v. 14 Connecticut, 382 F.3d 225, 228 n.4 (2d Cir. 2004) ( Strip search is often used as an umbrella 15 term that applies to all inspections of naked individuals. ). 16 Second, the majority seems to suggest that the disrobing procedure at issue in this case 17 does not implicate the type of privacy protected by the Fourth Amendment (Maj. Op. at 24) 18 and is distinguishable from traditional strip searches of persons charged with misdemeanors 19 because of the motives of the officers conducting the procedure. See Maj. Op. at 21 (describing 20 (1) CO s testimony that purpose of strip procedure was merely to exchange clothes, and 21 (2) observation of arrestee s body as incidental to clothing exchange ).4 But the privacy 22 interests protected by the Fourth Amendment do not become irrelevant merely because we use To the extent that the majority is suggesting that the exact same procedure may or may not amount to an invasion of privacy depending upon the CO s subjective intent, this is improper because challenged searches are judged without regard to the underlying intent or motivation of the officers involved. Hudson v. New York City, 271 F.3d 62, 68 (2d Cir. 2001) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). 4 29 1 the nomenclature of clothing exchange instead of strip search. See Marriott v. County of 2 Montgomery, 227 F.R.D. 159, 169 (N.D.N.Y. 2005) ( Using different terminology, such as 3 change-out, does not change the observation of a naked admittee to anything other than what it 4 is a strip search. ). As the Supreme Court has explained with respect to the act of urination 5 (whose visual or aural monitoring implicates privacy interests ), [t]here are few activities in 6 our society more personal or private . . . . Most people describe it by euphemisms if they talk 7 about it at all. It is a function traditionally performed without public observation; indeed, its 8 performance in public is generally prohibited by law as well as by social custom. Skinner v. Ry. 9 Labor Executives Ass n, 489 U.S. 602, 617 (1989) (internal quotation marks omitted). This 10 rationale applies equally strongly to the exposure of one s private parts. See Justice v. City of 11 Peachtree City, 961 F.2d 188, 191 (11th Cir. 1992) ( Deeply imbedded in our culture is the 12 belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed 13 unclothed or to have their private parts observed or touched by others. (internal quotation 14 marks and alterations omitted)); cf. Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir. 1980) ( The 15 privacy interest entitled to protection concerns the involuntary viewing of private parts of the 16 body by members of the opposite sex. ). 17 Moreover, in analyzing the purpose of the disrobing procedure, the majority again 18 commits the fallacy of adopting defendants version of disputed facts. Defendants have 19 represented to this Court that the purpose of the procedure is incidental observation of the 20 inmate where the intent is not to search, but to perform an administrative action in a controlled 21 environment. (Reply Br. for Appellants at 21.) They have also asserted that the procedure is 22 not intended to be a personal search. (Appellants Br. at 6.) The majority agrees. It writes of 23 the incidental observation of the body of an arrestee. Maj. Op. at 21. In contrast, plaintiffs 24 allege that the objective of the disrobing procedure is to search arrestees (see Appellees Br. at 2) 25 and, according to the district court, the record strongly suggest[ed], but did not establish, that 26 the purpose behind the entire exchange/strip search process is to search inmates for contraband. 30 1 Kelsey, 2007 WL 603406, at *6. If the majority accepted as it must on this interlocutory 2 appeal plaintiffs version of the facts, then it would be compelled to call this procedure what 3 plaintiffs allege it to be: a strip search. 4 Having erroneously concluded that the Fourth Amendment is not implicated, the majority 5 nonetheless proceeds to argue that the disputed procedure is constitutionally valid because it is 6 related to maintaining institutional security and preserving internal order and discipline. Maj. 7 Op. at 21 (quoting Bell v. Wolfish, 441 U.S. 520, 546 (1979)). But a court need only examine 8 penological objectives if a constitutional right is implicated. See Turner v. Safley, 482 U.S. 78, 9 89 (1987) ( [W]hen a prison regulation impinges on inmates constitutional rights, the regulation 10 is valid if it is reasonably related to legitimate penological interests. ). Accordingly, the 11 majority s analysis belies its conclusion: the majority s evaluation of penological objectives is 12 necessary only if contrary to the majority s conclusion the disrobing procedure implicates the 13 type of privacy interests protected by the Fourth Amendment.5 14 Nonetheless, it is true that with respect to jails, maintaining institutional security and 15 preserving internal order and discipline are essential goals that may require limitation or 16 retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. 17 Bell, 441 U.S. at 546. But the majority, after implicitly conceding that the disrobing procedure 18 implicates the Fourth Amendment, invokes penological objectives that defendants have rejected 19 and fails to identify essential goals requiring the retraction of Fourth Amendment rights. 20 Although recognizing that it is ill-equipped to define the contours of life in jail, Maj. Op. at 23, 21 the majority nonetheless substitute[s] [the Court s] judgment on these difficult and sensitive 22 matters of institutional administration and security for that of the persons who are actually 23 charged with and trained in the running of such facilities. Block v. Rutherford, 468 U.S. 576, The majority responds that, regardless of whether a constitutional right is implicated, nothing prevents it from considering penological interests in other circumstances. Maj. Op. at 22 n.5. But the majority fails to explain what other circumstances justify its analysis or how its discussion is relevant to its holding. 5 31 1 588 (1984) (internal quotation marks and citations omitted). For example, the majority suggests 2 that the clothing procedure is justified in order to ensure: (1) that each inmate has clothing that 3 is clean and free of infestation; (2) that inmates are clearly indentifiable and distinguishable 4 from visitors, staff and members of the public; and (3) that a positive state of mind be instilled 5 in each inmate. Maj. Op. at 21-22. But no one is challenging a jail s authority to require 6 detainees to wear uniforms, and none of these reasons justify requiring an arrestee to strip in 7 front of a CO. See Bell, 441 U.S. at 559 ( Courts must consider the scope of the particular 8 intrusion, the manner in which it is conducted, the justification for initiating it, and the place in 9 which it is conducted. ); Weber v. Dell, 804 F.2d 796, 804 (2d Cir. 1986) ( Deference, however, 10 is not a dispensation from the requirement under the Fourth Amendment that searches be 11 reasonable. ). Jail administrators have adopted means other than clothing exchanges of 12 detecting contraband. In particular, the jail policy (which does not reference clothing exchanges) 13 allows pat searches and searches with a hand-held metal detector upon intake, and it permits strip 14 searches and body cavity searches upon reasonable suspicion to believe that the inmate should 15 be searched. 16 The majority also suggests that forcing arrestees to strip naked is justified because COs 17 must observe inmates at all times. Maj. Op. at 21. But defendants never claim that COs must 18 be omnipercipient. Defendants deny the existence of any blanket jail policy of requiring 19 arrestees to expose themselves. (See Appellants Br. at 2 ( This case specifically concerns a 20 procedure . . . that requires inmates to change out of their street clothes and into a facility-issued 21 uniform with partial privacy but in the physical presence of a corrections officer. ).) According 22 to defendants, arrestees are permitted to change behind a half-wall and are informed by COs that 23 they may use a towel for privacy. They further acknowledge that COs do not watch the arrestees 24 showering or changing into their jail uniforms. Defendants do not, therefore, argue that COs 25 must exercise unflagging and perpetual vigilance over every pore of an arrestee s body. Nor, in 26 contrast to the majority, do defendants suggest that some degree of privacy is necessarily 32 1 anathema to a jail s internal order or that the forced exposure of private parts during a clothing 2 exchange is an integral part of jail security. Accordingly, where defendants, themselves, have 3 conceded that penological interests are satisfied in a manner that does not require the forced 4 exposure of private parts, we should not condone an alleged infringement upon constitutionally 5 protected privacy interests merely because we can imagine an alternative procedure that we 6 might consider to be more effective. 7 I agree with the majority that it is important for corrections officers to be vigilant and that 8 clothing exchanges can serve important objectives. Maj. Op. at 22. But like the First Circuit and 9 in the absence of reasonable suspicion: 10 11 12 13 14 15 [o]ur case law on misdemeanor arrestees effectively holds that, even if the only way to be comprehensive in detecting contraband is to perform a strip search, the government must bear the risk of missing some items. . . . [B]alancing constitutional rights and institutional needs may require that, in situations presenting only a remote risk of concealment, we accept less than perfect law enforcement procedures. 16 Wood v. Hancock County Sheriff s Dep t, 354 F.3d 57, 65 n.13 (1st Cir. 2003); see N.G., 382 17 F.3d at 232 ( [I]n several decisions, we have ruled that strip searches may not be performed upon 18 adults confined after arrest for misdemeanors, in the absence of reasonable suspicion concerning 19 possession of contraband. ). If, under plaintiffs version of the facts, arrestees for misdemeanors 20 could have protected their private parts from exposure, I would have agreed with the majority 21 that Fourth Amendment interests would not be implicated and violated. But that is not the case 22 before us. 23 Because plaintiffs version of the facts indicates a constitutional violation of a clearly 24 established right under the Fourth Amendment against unreasonable searches, we should affirm 25 the district court s denial of summary judgment. 33
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
